R v Stephen Hart & Ors

In assessing special preparation costs for extensive electronic evidence, the court should consider both the scale and complexity of the material and the proper role of defence representatives.

A hybrid method may be appropriate: lower-grade fee earners can use searches to reduce the material, while more experienced fee earners undertake contextual and page-by-page analysis. Experience is justified where encrypted communications, pseudonyms, slang and terms of art make simple searches unreliable. The work must nevertheless remain directed to the allegations faced, rather than investigating uncharged offending.

Jerman, Samuels & Pearson LLP appealed against a Determining Officer’s redetermination of special preparation costs arising from its representation of three defendants in a large drugs and weapons conspiracy.

The accepted evidence comprised 66,541 pages, including extensive electronic telephone material. The Appellant claimed 1,893 hours of Grade B time. The Determining Officer allowed 360 hours, comprising 320 hours at Grade C and 40 hours at Grade B.

The central issues were the appropriate method for reviewing the electronic material and the grades of fee earner reasonably required.

1. The appeal was allowed. The appropriate allowance was 320 hours at Grade C and 400 hours at Grade B, together with £100 paid on appeal and £1,500 costs, plus VAT where applicable.
2. The court accepted that electronic evidence in a large conspiracy may require more than a straightforward search of telephone numbers. Messaging applications may not be linked to particular numbers, and relevant associations may have to be identified through pseudonyms, nicknames, initials, epithets and contextual indicators.
3. A hybrid approach was appropriate. Grade C fee earners could use search terms to narrow the material requiring close scrutiny, with a Grade B fee earner then applying experience to a page-by-page and contextual analysis. The accepted page count included material beyond Excel-format data, including image data and screenshots.
4. The complexity of encrypted communications, concealed language and terms of art justified deploying an experienced fee earner. That justification was subject to the limits of the defence function. Representatives were required to address the allegations and assess whether the evidence was consistent with those allegations or the defendants’ accounts. They were not required to investigate potential offending not identified by the prosecution.
5. Not all of the work warranted a Grade B rate. The court therefore increased the Grade B allowance substantially, but retained the Grade C allowance made by the Determining Officer.

The appeal was brought against a Determining Officer’s written reasons dated 3 November 2022. The Senior Courts Costs Office allowed the appeal in part as to the grade and amount of special preparation time, and awarded the Appellant’s appeal costs.